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Aboriginal Rights & Title,
Treaties & Traditional Territory
[W]e Aboriginal peoples, who have all the reason in the world to feel cheated and ill-treated, have never nurtured a collective desire for retribution. We have never said: Europeans go home. We recognize that we all live together in this land, that we must share, and that in the end our interests are much the same. We want peace, health and wellbeing for our children. We strive for clean water and air, happiness and freedom. We insist on mutual recognition and respect for dignity, fundamental rights, and the principle of the equality of peoples.
There is only one solution for the situation facing indigenous peoples in the north, south, west and east in the Americas. It is not more exclusion or denial or oppression or extinguishment. The only solution is a full recognition and full respect of our peoples' status and rights as peoples and, most important of all, our fundamental human right to self determination.
Land Ownership from an Aboriginal PerspectiveThe concept of land ownership was completely alien to the Native peoples. From an Aboriginal cultural and spiritual perspective, land cannot be bought or sold. They saw themselves as the spiritual guardians of the land, not its actual owners. Land was considered a gift from the Creator or Great Spirit, and its resources were to be used for survival purposes only.
Thus, the concept of 'surrendering' land was one that caused great confusion within Aboriginal communities, and may have contributed to further injustices against the Aboriginals - notably, the signings of the Upper Canada and other treaties. This Aboriginal view of land ownership is one of the roots to many Aboriginal rights and land issues today.
Aboriginal RightsAs one scholar noted, "There can be no answer to the question 'what are Aboriginal rights?' that is not in the terms of the dominant, non-Native society...any answer to the question 'what are Aboriginal rights?' is already an attempt to confine, constrain, demarcate and delimit those rights and consequently part of the process of confining, constraining, demarcating and delimiting Aboriginal peoples."Source: Kulchyski, P. Unjust Relations: Aboriginal Rights in Canadian Courts
Aboriginal rights need to also be considered in the context of the patchwork process of colonization, and the relationship that has developed between the Crown and Aboriginal people from the earliest treaties to present government policies. Many would argue that Aboriginal rights can be traced in law directly to the Royal Proclamation of 1763, and arguably, to the earliest treaties and the principles of British common law. Recent interpretations of Aboriginal Rights by the Supreme Court hold that the Crown, in its dealings with Aboriginal peoples, has accepted that they "would retain their lands, as well as their political and cultural institutions and customary laws, unless the terms of treaties ruled this out or legislation was enacted to the contrary". Furthermore, the Crown has "assumed a general obligation to protect Aboriginal peoples and their lands and generally look out for their best interests, in what the judges have described as a fiduciary or trust-like obligation".
Source: Kulchyski, P. Unjust Relations: Aboriginal Rights in Canadian Courts, quotes from Slattery, B. Understanding Aboriginal Rights Canadian Bar Review 66: 727 pg. 733-35
Indian and Northern Affairs Canada describes Aboriginal rights as: Rights that some Aboriginal peoples of Canada hold as a result of their ancestors' longstanding use and occupancy of the land. The rights of certain Aboriginal peoples to hunt, trap and fish on ancestral lands are examples of Aboriginal rights. Aboriginal rights will vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures.
Source: Indian and Northern Affairs Canada
WAHBUNG: Our Tomorrows Download October 1971 report WAHBUNG: Our Tomorrow (PDF)View Assembly of Manitoba Chiefs Preface for WAHBUNG: Our Tomorrow Sources: Assembly of Manitoba Chiefs
Aboriginal Water RightsView Manitoba Wildlands' Water pages section on Aboriginal Water Rights First Nations Have Less Environmental Protection In the 2009, Auditor General of Canada, [Fall Report], Ms. Sheila Fraser stated that Indian and Northern Affairs Canada (INAC) and to a lesser extent Environment Canada, routinely fail to regulate environmental threats on reserves."As a result, people living on reserves have significantly less protection from environmental threats than other communities," says Ms. Fraser. The report stated that contrary to regulations under the Indian Act, most landfill sites and sewage treatments on reserves operate without permits, monitoring, or enforcement by INAC. Septic systems, wastewater discharges, and hazardous waste are some of the environmental threats not subject to regulation on reserves, but which are strictly controlled off reserves. The Auditor General also found that despite INAC's commitment to transfer more control to First Nations over management of their lands and resources, their access to land management programs and training is limited. The INAC agreed with all of the comments made in the Auditor General's Report and states throughout the report that they will work to develop strategies to identify and close regulatory environmental gaps on reserves. View 2009 Fall Report of the Auditor General of CanadaView November 3, 2009 Office of the Auditor General press release View November 15, 2009 Intercontinential Cry article Sources: Office of the Auditor General, Intercontinental Cry
Aboriginal TitleIf there is to be an infringement on Aboriginal title the government must recognize its fiduciary relationship with Aboriginal people, and ensure that there is as little infringement as possible, that fair compensation is made available and that the Aboriginal group has been consulted. In 1973, the Supreme Court of Canada first recognized land rights based on Aboriginal title. Source: Summary, Indian and Northern Affairs Canada
Indian and Northern Affairs Canada describes Aboriginal title as: A legal term that recognizes Aboriginal interest in the land. It is based on their longstanding use and occupancy of the land as descendants of the original inhabitants of Canada.
Source: Indian and Northern Affairs Canada
Treaties |
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| A "Treaty" is a written agreement or contract made between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state. In Canada, treaties are constitutionally recognized agreements between the Crown and Aboriginal nations. |
Historical Treaties of Canada Map Larger Version |
| The signing of treaties in Canada extinguished Aboriginal title (but not Aboriginal rights) within those lands delineated by the treaty. (However, there are lands in Canada where treaties were never signed and Aboriginal title to land was never extinguished. Such is the case in most of British Columbia.) View the Treaty texts The Royal Proclamation of 1763
The Royal Proclamation of 1763, issued by King George III after the fall of Quebec and the Treaty of Paris, is a primary basis for our understanding of the legal nature of Aboriginal title and an historical root of the treaty process. It articulated the basic principles for treaty making with Aboriginal peoples. The Royal Proclamation of 1763 decreed that Aboriginal peoples should not be disturbed in their use and enjoyment of the land and it declared that only the Crown could acquire land from Aboriginal peoples, and only through treaty-making. It set the stage for the negotiation of legally binding documents with Aboriginal peoples on a wide variety of issues and its provisions influenced the treaty process as well as the designation of reserve land, which still take place in accordance with the Indian Act.
Source: Bloorstreet.com, Turtle Island Native Network, Indian and Northern Affairs Canada
View the text of the Royal Proclamation of 1763 View a map depicting the lands to which the Royal Proclamation of 1763 applied Canadian Constitution Act - Section 35View the Canadian Constitution Act (1982) - Section 35 Historic Manitoba Treaties
There are five historic numbered treaties that include lands in what is now Manitoba.Treaty 1 was signed in 1871 - View Treaty document Treaty 2 was signed in 1871 - View Treaty document Treaty 3 was signed in 1873 - View Treaty document Treaty 4 was signed in 1875 - View Treaty document Treaty 5 was signed was signed on a variety of dates beginning on September 20, 1875 and concluding on September 7, 1876 - View Treaty document There were several adhesions to Treaty 5 (where Aboriginal signed on or were added to a Treaty at a later date) that took place between June 26, 1908 and August 10, 1910. View a map of Manitoba Treaties View a larger map of Manitoba Treaties Beginning in the 1870's, some Manitoba Aboriginal communities (or Indian Bands) signed treaties with representatives of the English monarchy. Other Aboriginal communities (or Indian Bands) did not actually sign treaties, but were included in treaties through an addendum. The benefits to non-Aboriginal peoples included the continued right to live in traditional territories. Essentially, the Aboriginal communities (or Indian Bands) agreed to share the land with the newcomers in exchange for promises that the needs of their future generations would be met. Aboriginal peoples' philosophy of maintaining harmony formed the basis of these agreements. The treaties are considered sacred documents by the Aboriginal peoples of Manitoba and many Elders have passed on their recollections of the treaty negotiations through oral history. Some Elders have indicated that the written versions of treaties did not include everything that was agreed to by the negotiators. Source: Assembly of Manitoba Chiefs
View a summary of Treaties One to FiveAboriginal Traditional TerritoriesTraditional territory (off reserve) refers to the land which surrounds a First Nation community that was and still may be used by the First Nation community to practice a subsistence way of life - that is, land where hunting, trapping, fishing, and gathering activities were historically practiced, and that still may be used by the community for cultural and livelihood purposes.
Source: Campbell, T. Information North, Vol 22, no.1 (March 1996) Modern Treaties and Land Claims
Comprehensive Land Claims
Comprehensive land claims are negotiated in areas where Aboriginal title has not been dealt with by Treaty or other legal methods. The main goal of the comprehensive land claims settlement process is to provide certainty of jurisdiction over land and resources - the rights and obligations of all parties are clarified, and conflicting land ownership between the Crown and Aboriginal peoples is resolved.Historically, a major problem with the Treaty-making process had been that the federal government would only negotiate treaties if Aboriginal peoples accepted "extinguishment" of their Aboriginal rights and title - they were required to "cede, release and surrender" their aboriginal rights in exchange for treaty rights. In 1986, the federal government announced a new comprehensive claims policy to respond to concerns expressed by Aboriginal groups. The new claims policy provided alternatives to blanket extinguishment. It also widened the scope of comprehensive claims negotiations to include offshore wildlife harvesting rights, sharing of resource revenues, an Aboriginal voice in environmental decision-making and a commitment to negotiate self-government. Source: Summarized from Indian and Northern Affairs Canada, BC Treaty Commission
View the Aboriginal Mapping Network's Toolbox to respond to Crown Land Referrals View a listing of Some of Canada's modern Treaties from lands claims
Treaty Land Entitlement - Manitoba
The Treaty land entitlement (TLE) process is another form of modern Treaty. The Treaty land entitlement process aims to settle the land debt owed to those First Nations who did not receive all the land they were entitled to under the historic numbered treaties signed by the Crown and First Nations. Once the amount of land is determined through the negotiation process, a First Nation may purchase federal, provincial (territorial), or private land to settle a land debt.
Source: Indian and Northern Affairs Canada
In 1977, the Treaty Land Entitlement Committee of Manitoba Inc. was formed to begin negotiations on behalf of Manitoba First Nations to settle outstanding TLEs with Canada. Not all Manitoba First Nations entitled to TLE lands are/were represented by the Manitoba TLE Committee.Visit the Treaty Land Entitlement Committee of Manitoba website The province's role in the TLE process stems from the provisions of the Manitoba Natural Resources Transfer Agreement (MNRTA) of 1930. Prior to 1930 and from the time Manitoba entered Confederation in 1870, the federal government retained control over unallocated Crown lands in the province, along with other natural resources. The Manitoba Natural Resources Transfer Agreement (MNRTA) of 1930 transferred control and administration of these resources and lands to Manitoba, but required the province to provide Canada with sufficient unoccupied Crown land to fulfill outstanding TLE obligations to Manitoba First Nations. Today the MNTRA Act is contentious, and in dispute. View the text of the Manitoba Natural Resources Transfer Act 1930 Although Canada, Manitoba and the TLE Committee began negotiations in 1983, the three parties did not finalize the agreement and little progress was made. It wasn't until May 29, 1997, the Manitoba Treaty Land Entitlement Framework Agreement was signed by the TLE Committee (representing 20 First Nations), Canada and Manitoba at the Opaskwayak Cree Nation, MB. This Framework Agreement is intended to fulfill Canada's outstanding debt of lands owed to the 20 TLE Committee member First Nations. View Canadian government Status Report on TLE Obligations in Manitoba Manitoba's Northern Flood Agreement
In the early 1970's, Manitoba Hydro was proceeding with its plans for hydro-electric projects on the Nelson and Churchill Rivers. As the plans for the Lake Winnipeg Regulation/Churchill River Diversion projects evolved, discussions began with five northern communities that would be affected by flooding from the projects.
In 1974, the five affected First Nations formed the Northern Flood Committee to act jointly in consultations with Manitoba Hydro and the Governments about the projects. The Northern Flood Committee, funded by the Federal Government, negotiated the Northern Flood Agreement (NFA) and the agreement was signed in 1977. The five NFA First Nations are Split Lake - now Tataskweyak Cree Nation, Nelson House - now Nisichawayasihk Cree Nation, York Factory, Norway House and Cross Lake - now Pimicikamak Cree Nation. As the effects of the project were not fully be predicted at the time the NFA was negotiated, provisions were made for future remedial and compensatory activities:
View the text of the Northern Flood Agreement Visit the Northern Flood Agreement Office of the Arbitrator website Implementation of the NFA proved difficult. In 1986, the Northern Flood Committee Inc. proposed that a comprehensive implementation agreement be developed. Through the 1990s, Tataskweyak Cree Nation, York Factory Cree Nation, Nisichawayasihk Cree Nation, and Norway House Cree Nation signed Comprehensive Implementation Agreements (CIAs) with Canada, Manitoba and Manitoba Hydro. In the case of Norway House, their CIA is known as the Master Implementation Agreement (MIA). View the four settlement Agreements under the NFA
Recent Court Decisions - Aboriginal Rights |
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Métis Lands
 The first Métis people were the children of unions between Aboriginal women (Woodland Cree, Ojibway, Saulteaux, and Menominee) and European men (French Canadian and/or Celtic settlers). These children of mixed ancestry gradually established distinct communities outside of Aboriginal and European cultures and settlements. The intermarriages between Métis women and Métis men resulted in the genesis of a new Aboriginal people - the Métis.The Métis shaped Canada's expansion westward through their on-going assertion of their collective identity and rights. From the Red River Resistance to the Battle of Batoche to other notable collective actions undertaken throughout the Métis Nation Homeland, the history and identity of the Métis people will forever be a part of Canada's existence. Today, the Métis people are alive and well within Canada; however, they continue to push for the respectful recognition and reconciliation for their Aboriginal rights and existence within the Canadian federation. The Métis people assert that they are a distinct Aboriginal nation - this claim is based on the Métis' shared history, a common culture (song, dance, dress, national symbols, etc.), a unique language (Michif with various regional dialects), extensive kinship connections from Ontario westward, a distinct way of life, a traditional territory and a collective consciousness. 'Métis' means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation. The Métis Nation is based in western Canada and they define their Homeland as the traditional territory upon which the Métis people have historically lived and relied upon. This territory roughly includes the 3 Prairie provinces (Manitoba, Alberta and Saskatchewan), parts of Ontario, British Columbia and the Northwest Territories, as well as, parts of the northern United States (i.e. North Dakota, Montana). Source: Summarized from Métis National Council
Visit the Métis National Council websiteVisit the Manitoba Métis Federation website Visit the Métis Culture & Resource Centre Métis Scrip Lands & Métis Rights
When Manitoba entered Confederation in 1870, the Dominion government promised
to give the Métis population a large amount of land. In the eyes of governme
nt officials and politicians, the Métis were not a distinct group.Section 31 of the Manitoba Act reserved 1.4 million acres in the new province "toward the extinguishment" of Aboriginal title claimable by persons of part Aboriginal ancestry - this was to be divided between the children of the Métis families. Métis were given 160 acres of land or scrip valued at $160. This was the beginning of the Métis Nation being "enfranchised" from the Indian Act and it wasn't until 1982, with the enactment of The Canadian Constitution Act, that the Métis Nation was once against recognized as an Aboriginal People of Canada. This was very important for the Métis, as prior to that time, their claim of Aboriginal rights and title to lands had gone legally unrecognized. Since then, the Métis have begun to build a case for recognition of their traditional rights, such as rights to hunt and trap. In 2003, a court ruling in Ontario - the Powley Decision - found that an Ontario Métis community has the Aboriginal right to hunt for food, a decision seen as a first step toward granting full hunting rights to the community. On May 31, 2005, the Government of Canada and the Métis National Council signed a framework agreement to pave the way for self-government for the Métis in the homeland. Source: Wikipedia, Turtle Island Productions
Download information on Manitoba Métis Rights and Land Claims (PDF)View information on the Powley Decision Visit the website of the Federal Interlocutor for Métis and Non-Status Indians View the July 26, 2006 Manitoba Wildlands news item View the September 28, 2006 Manitoba Wildlands news item View the December 13, 2007 Manitoba Wildlands news item Duty to Consult with
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